Date: 19990113
Docket: XO50427
Registry: New Westminster
IN THE SUPREME COURT OF BRITISH COLUMBIA
BETWEEN:
HER MAJESTY THE QUEEN
AND:
JOHN ROBIN SHARPE
RULING ON VOIR DIRE
OF THE
HONOURABLE MR. JUSTICE SHAW
Counsel for the Crown: Mr. T.A. Schultes
John Robin Sharpe: Appeared In Person
Place and Dates of Voir Dire: Vancouver, B.C.
November 9, 10, 12,
20, 24, 25 and 26, 1998
[1] The accused John Robin Sharpe challenges the
constitutionality of child pornography provisions set out in
Section 163.1 of the Criminal Code. Mr. Sharpe contends that
the impugned provisions violate the Canadian Charter of Rights
and Freedoms, and in particular Sections 2(a), 2(b), 2(d) and
15.
[2] A voir dire has been held to hear the constitutional
challenge. This is my ruling.
[3] There are four charges against Mr. Sharpe.
Count 1
He, on or about the 10th day of April, 1995, at or near
Surrey, in the Province of British Columbia did have in
his possession for the purpose of distribution or sale,
child pornography: computer discs containing a text
entitled Sam Paloc's Flogging, Fun and Fortitude - A
Collection of Kiddiekink Classics, contrary to Section
163.1(3) of the Criminal Code.
Count 2
He, on or about the 10th day of April, 1995, at or near
Surrey, in the Province of British Columbia did have in
his possession child pornography: computer discs
containing a text entitled Sam Paloc's Flogging, Fun and
Fortitude - A Collection of Kiddiekink Classics, other
writings and photographs, contrary to Section 163.1(4) of
the Criminal Code.
Count 3
He, on or about the 13th day of May, 1996, at or near the
City of Vancouver, in the Province of British Columbia did
have in his possession, for the purpose of distribute or
sale, child pornography: books, manuscripts and stories,
contrary to Section 163.1(3) of the Criminal Code.
Count 4
He, on or about the 13th day of May, 1996, at or near the
City of Vancouver, in the Province of British Columbia did
have in his possession child pornography: books,
manuscripts, stories and photographs, contrary to Section
163.1(4) of the Criminal Code.
[4] The evidence indicates that there were two seizures of
materials from Mr. Sharpe. The first was by Canada Customs.
That seizure was of computer discs containing a text entitled
"Sam Paloc's Flogging, Fun and Fortitude, A Collection of
Kiddie Kink Classics." As a result of that seizure Mr. Sharpe
was charged with Counts 1 and 2. The second seizure was at Mr.
Sharpe's home pursuant to a search warrant (the validity of
which will be contested at a later point in this trial). That
seizure was of a collection of books, manuscripts, stories and
photographs said by the Crown to constitute child pornography.
Many of the seized photographs are of nude boys displaying
their genitals or anal regions.
[5] The challenges by Mr. Sharpe are on s-s.(4) and s-s.(1)(b)
of s.163.1 of the Criminal Code. Subsection (4) prohibits
simple possession of child pornography. Subsection (1)(b) sets
out part of the definition of child pornography, that part
including material which counsels or advocates the commission
of sexual offences against children.
[6] Section 163.1 of the Criminal Code reads:
163.1(1) in this section "child pornography" means
(a) a photographic, film, video or other visual
representation, whether or not it was made
by electronic or mechanical means,
(i) that shows a person who is or is
depicted as being under the age of
eighteen years and is engaged in or is
depicted as engaged in explicit sexual
activity, or
(ii) the dominant characteristic of which
is the depiction, for a sexual
purpose, of a sexual organ or the anal
region of a person under the age of
eighteen years; or
(b) any written material or visual
representation that advocates or counsels
sexual activity with a person under the age
of eighteen years that would be an offence
under this Act.
(2) Every person who makes, prints, publishes or
possesses for the purpose of publication any
child pornography is guilty of
(a) an indictable offence and liable to
imprisonment for a term not exceeding ten
years; or
(b) an offence punishable on summary
conviction.
(3) Every person who imports, distributes, sells or
possesses for the purpose of distribution or
sale any child pornography is guilty of
(a) an indictable offence and liable for
imprisonment for a term not exceeding ten
years; or
(b) an offence punishable on summary
conviction.
(4) Every person who possesses any child pornography
is guilty of
(a) an indictable offence and liable to
imprisonment for a term not exceeding five
years; or
(b) an offence punishable on summary
conviction.
(5) It is not a defence to a charge under subsection
(2) in respect of a visual representation that
the accused believed that a person shown in the
representation that is alleged to constitute
child pornography was or was depicted as being
eighteen years of age or more unless the accused
took all reasonable steps to ascertain the age
of that person and took all reasonable steps to
ensure that, where the person was eighteen years
of age or more, the representation did not
depict that person under the age of eighteen
years.
(6) Where the accused is charged with an offence
under subsection (2), (3) or (4), the court
shall find the accused not guilty if the
representation or written material that is
alleged to constitute child pornography has
artistic merit or an educational, scientific or
medical purpose.
(7) Subsections 163(3) to (5) apply, with such
modifications as the circumstances require, with
respect to an offence under subsection (2), (3)
or (4), 1993, c.46.s.2.
[7] Mr. Sharpe invokes the following provisions of the
Canadian Charter of Rights and Freedoms:
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and
expression, including freedom of the press and
other media of communication;
. . .
(d) freedom of association.
15.(1) Every individual is equal before and under the law
and has the right to the equal protection and equal
benefit of the law without discrimination and, in
particular, without discrimination based on race,
national or ethnic origin, colour, religion, sex, age
or mental or physical disability.
[8] The Crown relies upon s.1 of the Charter:
1. The Canadian Charter of Rights and Freedoms
guarantees the rights and freedoms set out in it
subject only to such reasonable limits prescribed by
law as can be demonstrably justified in a free and
democratic society.
SIMPLE POSSESSION: SUBSECTION (4)
[9] I will deal first with Mr. Sharpe's contention that s-
s.(4) of s.163.1 is unconstitutional.
[10] It will be observed on reading s-s.(4) that the word
"possesses" is not limited; any purpose will suffice to make
possession of child pornography a crime. Subsection (4) is to
be contrasted with s-s.(2) and s-s.(3) which prohibit
possession for purposes of publication, sale or distribution.
Evidence
[11] The Crown led evidence from two expert witnesses. The
first was Detective Noreen Waters of the Vancouver Police
Department. She is an expert in the investigation of child
pornography. She testified that with the advent of the
Internet there has been a veritable explosion of the
availability of child pornography. She observed that as a
result of simple possession charges laid under s-s.(4), the
police have been able to obtain search warrants and carry out
searches which have assisted them in finding child molesters.
Detective Waters also pointed out that children are abused when
they are exploited in the production of filmed or videotaped
pornography.
[12] The second expert witness was Dr. P.I. Collins, a
specialist in Forensic Psychiatry, particularly with respect to
sexual deviancy and pedophilia. Dr. Collins is a clinician (as
distinct from a researcher) who specializes in treating persons
with sexual deviancy problems. His patients include homosexual
pedophiles, men whose sexual preference is boys.
[13] Dr. Collins offered several reasons why, in his view,
child pornography is harmful to children. The first is that
some pedophiles show children sexually explicit depictions of
children with adults, or adults with other adults, in order to
lower inhibitions and to make the depicted conduct appear to be
normal. The second is that pornography excites some child
molesters to commit offences. The third is that child
pornography augments or reinforces the "cognitive distortions"
of pedophiles. Dr. Collins explained that cognitive
distortions are erroneous beliefs by which pedophiles justify
their aberrant behaviour. Examples of cognitive distortions
are that child-adult sex is natural and that it does no harm to
children. The fourth reason offered by Dr. Collins is that
children are abused in the making of pornography and that
pornographic films or photographs are a record of their abuse.
[14] To support his views Dr. Collins relied upon certain
studies, two of which were put in evidence. The first was by
W.L. Marshall, Ph.D., entitled The Use of Sexually Explicit
Stimuli by Rapists, Child Molesters, and Non-offenders,
published in the May 1988 Journal of Sex Research, Vol.25,
No.2. This article addresses the "inciting" element of
pornography. Dr. Marshall states, at p.284:
One very important set of observations of the present
study concerns the use of sexually explicit materials
by sex offenders as an inciter to commit their
illegal behaviors. Slightly more than one third of
the child molesters and rapists claim to have at
least occasionally been incited to commit an offense
by exposure to one or the other type of the sexual
materials specified in this study.
[15] It should be noted that the materials used in the study
were sexually explicit "hard core" pornography. Dr. Marshall
points this out, at pp.283-84:
It is important to recall that the sexually explicit
materials of interest in this study refer to what is
often called "hard-core" pornography; that is,
depictions that are very explicit, showing genital
contact, etc. and which leave nothing to the
imagination. Also the content of these explicit
materials was restricted to either depictions of sex
with children or sex between adult men and women that
was either mutually consenting or forced by the man
upon the woman. Therefore, the present findings
cannot be construed as relevant to any broader issues
concerning pornography in general.
[16] The second article referred to by Dr. Collins is entitled
Use of Pornography in the Criminal and Developmental Histories
of Sexual Offenders by D.L. Carter, R.A. Prentky, R.A. Knight,
P.L. Vanderveer and R.J. Boucher of the Massachusetts Treatment
Centre. The study was published in the Journal of
Interpersonal Violence, Vol.2, No.2, June 1987, p.196. The
purpose of the study was to examine possible differences
between rapists and child molesters in exposure to and
experience with pornography. The subjects of the study were
convicted rapists and child molesters.
[17] The study found that child molesters have a greater
exposure to pornography than rapists and use it more often than
rapists in association with criminal offences. The study also
showed that child molesters use pornography more often than
rapists to relieve impulses to commit offences. Under the
"Discussion" part of the study, the authors state, at p.205:
Child molesters, however, indicated significantly more
exposure than rapists in adulthood and were more likely
both to use such materials prior to and during their
offences and to employ pornography to relieve an impulse
to commit offenses.
[18] The phenomenon of pornography relieving impulses to commit
offences was further addressed, at p.207:
The "use of sexual materials to relieve an impulse to
commit an offense" (item I) was our test of the "catharsis
hypothesis," the notion that the use of pornography
relieves pent-up sexual tension that might otherwise be
directed at an individual. We found support for this
hypothesis among child molesters. That is, child molesters
report that they were more likely than rapists to employ
pornography as a means of relieving an impulse to act out.
This finding should not be construed to suggest that
pornography functions to inhibit sexual acting out. The
use of pornography to relieve an impulse does not preclude
its role in intensifying an already active, and in many
cases rich, fantasy life. Such intensification is
supported by the greater use of pornography prior to
offenses by child molesters. Thus if an individual is
prone to act on his fantasies, it is likely that he will
do so irrespective of the availability of or exposure to
pornography. (underlining added)
[19] The study used a broad selection of sex materials, from
depictions of nude individuals on the one hand, to depictions
of persons engaged in explicit sexual acts on the other. The
materials included photographs, films, cartoons, magazines and
books. Despite the wide range of materials used, the study did
not address the differences in effect of the kinds of
pornography (explicit sex or simply nudes) on the persons being
studied. However, the article reported on earlier studies
which found that "mildly erotic stimuli" inhibited aggression
while "highly erotic stimuli" increased aggression. The
authors state, at p.197:
Earlier studies reported that exposure to pornography
inhibited aggression (Baron, 1974: Frodi, 1977).
Subsequent studies, however, have found that although mild
erotic stimuli inhibited aggression, highly erotic stimuli
in fact increased reported aggression in a laboratory
setting.
[20] Dr. Collins testified that pedophiles often used
pornography as an aid to masturbation. He was asked about the
relieving effect versus the inciting effect of pornography. He
was unable to say whether the relieving effect or the inciting
effect was greater, but noted that a study on the subject is
underway at the present time by a Dr. Ronald Langevin.
[21] There was no evidence led of any study demonstrating that
"cognitive distortions" cause any significant increase in the
danger that pedophiles pose to children. However, as was
pointed out in the Carter et al study, a person who is prone to
act out his fantasies will likely do so irrespective of the
availability of or exposure to pornography. In my view,
without reasonable supporting evidence, I should give only
minimal weight to the "cognitive distortions" point.
[22] As for written material which counsels or advocates
illegal sexual relations with children, there was no evidence
to show its harmful effect. However, in my view, it is
reasonable to assume that the dissemination of such material
does pose some risk of harm to children.
[23] I make the following findings of fact based upon the
evidence:
1. Sexually explicit pornography involving children
poses a danger to children because of its use by pedophiles in
the seduction process.
2. Children are abused in the production of filmed or
videotaped pornography.
3. "Highly erotic" pornography incites some pedophiles
to commit offences.
4. "Highly erotic" pornography helps some pedophiles
relieve pent-up sexual tension.
5. It is not possible to say which of the two foregoing
effects is the greater.
6. "Mildly erotic" pornography appears to inhibit
aggression.
7. Pornography involving children can be a factor in
augmenting or reinforcing a pedophile's cognitive distortions.
8. There is no evidence which demonstrates an increase
in harm to children as a result of pornography augmenting or
reinforcing a pedophile's cognitive distortions.
9. The dissemination of written material which counsels
or advocates sexual offences against children poses some risk
of harm to children.
Legal Analysis
[24] Crown counsel concedes that s-s.(4) violates the guarantee
of freedom of expression set out in s.2(b) of the Charter. I
agree with this concession. Crown counsel contends however
that s-s.(4) is saved by s.1 of the Charter as being a
reasonable limit prescribed by law which is demonstrably
justified in a free and democratic society.
[25] Crown counsel does not concede that there has been any
violation of s.2(a), s.2(d) or s.15 of the Charter.
[26] Because of the Crown's concession that s-s.(4) violates
s.2(b) of the Charter, the dispute becomes whether s-s.(4) may
be justified under s.1 of the Charter.
[27] Insofar as counsel and I are aware, the constitutionality
of s.163.1 has thus far been addressed in only one other court
decision, Ontario (Attorney General) v. Langer (1995), 97
C.C.C. (3d) 290 (Ont.Ct.Gen.Div.); leave to appeal to S.C.C.
refused (1995), 42 C.R. (4th) 410n. In Langer, the court dealt
with an application by the Crown to forfeit paintings and
sketches seized from an art gallery. The paintings and
sketches depicted explicit sexual relations between adults and
children. The court held that the depictions had artistic
merit and did not pose a realistic risk of harm to children,
and ordered that the paintings and sketches be returned to the
person from whom they had been seized.
[28] The learned trial judge, McCombs J., dealt with the
constitutionality of s.163.1. In a researched and detailed
decision, he held that s.163.1 violated s.2(b) of the Charter
but was justified under s.1.
[29] In dealing with s.1, McCombs J. addressed the
proportionality tests set out in R. v. Oakes (1986), 24 C.C.C.
(3d) 321 (S.C.C.). In respect of the "minimal impairment"
test, he said, at pp.325-26:
This objection ignores the reality that, on the basis of
the opinion evidence which I have accepted, private
possession of child pornography poses a realistic risk of
harm to children, by reinforcing cognitive distortions,
fuelling fantasies, and its potential use in "grooming"
possible child victims. It is entirely reasonable and
within the legitimate objectives of Parliament to
criminalize private possession of child pornography.
[30] The final proportionality test addressed by McCombs J. was
the weighing of the legislative objectives of s.163.1 against
the effects of the prohibitions. He said, at pp.327-28:
The final branch of the proportionality test includes a
weighing of the legislative objectives against the effects
of the legislation. Even if legislation otherwise meets
s.1 criteria, a provision will not constitute a reasonable
limitation if its effects are so deleterious that they
outweigh the importance of its objectives.
The child pornography provisions, designed to protect
children, do indeed limit the fundamental freedom of
expression. However, in the contextual approach that is
required, it is appropriate to bear in mind the type of
expression that has been limited. As Dickson C.J.C.
observed (Keegstra, supra, at p.47):
... it is equally destructive of freedom of
expression values, as well as the other values which
underlie a free and democratic society to treat all
expression as equally crucial to those principles at
the core of s.2(b).
The expression inherent in the production of child
pornography is not crucial to the principles which lie at
the core of freedom of expression. There is no evidence to
support the contention that the effects of the legislation
are so deleterious that they outweigh the pressing and
substantial objective of the legislation.
[31] On my reading of Langer, it is evident that the court did
not deal with the "weighing of effects" test formulated in
Dagenais v. Canadian Broadcasting Corp. (1994), 94 C.C.C. (3d)
289 (S.C.C.). As noted above, the s.1 analysis in Langer ended
with the weighing of the legislative objectives against the
effects of the legislation. Dagenais was not cited, likely
because it had only recently been decided and may not have been
drawn to the court's attention.
[32] The "weighing of effects" test in Dagenais was articulated
by Lamer C.J.C., who said, at pp.324-25:
While the third step of the Oakes proportionality test has
often been expressed in terms of the proportionality of
the objective to the deleterious effects, this court has
recognized that in appropriate cases it is necessary to
measure the actual salutary effects of impugned
legislation against its deleterious effects, rather than
merely considering proportionality of the objective
itself. For example, in Reference re: ss.193 and
195.1(1)(c) of the Criminal Code (Man.) (1990), 56 C.C.C.
(3d) 65, [1990] 1 S.C.R. 1123, 77 C.R. (3d) 1, Dickson
C.J.C. (who characterized the objective of the impugned
Criminal Code solicitation provisions as the curtailment
of the social nuisance caused by the public display of the
sale of sex) applied the third step of the proportionality
analysis by considering (at p.76) whether "the
obtrusiveness linked to the enforcement of the provision,
when weighed against the resulting decrease in the social
nuisance associated with street solicitation, can be
justified in accordance with s.1". (emphasis added)
and further, at p.325:
In my view, characterizing the third part of the second
branch of the Oakes test as being concerned solely with
the balance between the objective and the deleterious
effects of a measure rests on too narrow a conception of
proportionality. I believe that even if an objective is of
sufficient importance, the first two elements of the
proportionality test are satisfied, and the deleterious
effects are proportional to the objectives, it is still
possible that, because of a lack of proportionality
between the deleterious effects and the salutary effects,
a measure will not be reasonable and demonstrably
justified in a free and democratic society. I would,
therefore, rephrase the third part of the Oakes test as
follows: there must be a proportionality between the
deleterious effects of the measures which are responsible
for limiting the rights or freedoms in question and the
objective, and there must be a proportionality between the
deleterious and the salutary effects of the measures.
[33] In my view, it is appropriate in the present case to
consider the proportionality between the deleterious effects
and the salutary effects of the prohibition of simple
possession of child pornography.
[34] I will now enter upon the weighing process. First, the
salutary effects. The prohibition combats practices and
phenomena which, at least arguably, put children at risk.
These include: the use by some pedophiles of sexually explicit
images in the grooming process leading to sexual relations with
children; the abuse of children in the making of pornography
and the preservation of that abuse in photographs or films; the
confirmation or augmentation of cognitive distortions of some
pedophiles; the incitement of some pedophiles to commit
offences against children; and the advocacy or counselling of
the commission of sexual offences against children.
[35] There are factors which go to the weight to be attached to
the effectiveness of the prohibitions in combatting the
foregoing practices and phenomena. There is no evidence which
demonstrates any significant increase of danger to children
related to the confirmation or augmentation of cognitive
distortions caused by pornography. There is no evidence that
"mildly erotic" images are used in the "grooming process."
Only assumption supports the proposition that materials that
advocate or counsel sexual crimes with children have the effect
of increasing the occurrence of such crimes. Sexually explicit
pornography is used by some pedophiles to relieve pent-up
sexual tension. A person who is prone to act on his fantasies
will likely do so irrespective of the availability of
pornography. There is no evidence that the production of child
pornography will be significantly reduced if simple possession
is a made a crime.
[36] I turn now to consider the detrimental effects. I start
by repeating s.2(b) of the Charter:
2. Everyone has the following fundamental freedoms:
. . .
(b) freedom of thought, belief, opinion and
expression, including freedom of the press and
other media of communication.
[37] Freedom of expression plays an important role in this
case. The personal belongings of an individual are an
expression of that person's essential self. His or her books,
diaries, pictures, clothes and other personal things are
intertwined with that person's beliefs, opinions, thoughts and
conscience. In Ford v. Quebec (Attorney General), [1988] 2
S.C.R. 712, dealing with the right of people to use the
language of their choice, it was held that "freedom of
expression" should be broadly interpreted. The court said, at
p.749:
It is also the means by which the individual expresses his
or her personal identity and sense of individuality. That
the concept of "expression" in s.2(b) of the Canadian
Charter and s.3 of the Quebec Charter goes beyond mere
content is indicated by the specific protection accorded
to "freedom of thought, belief [and] opinion" in s.2 and
to "freedom of conscience" and "freedom of opinion" in
s.3. That suggests that "freedom of expression" is
intended to extend to more than the content of expression
in its narrow sense.
[38] The court included "individual self-fulfilment and
personal autonomy" within freedom of expression: (supra, at
p.767). The same notion was articulated in R. v. Keegstra
(1990), 61 C.C.C. (3d) 1 (S.C.C.) by Dickson C.J.C. at p.49:
Another component central to the rationale underlying
s.2(b) concerns the vital role of free expression as a
means of ensuring individuals the ability to gain self-
fulfillment by developing and articulating thoughts and
ideas as they see fit.
[39] The proportionality tests under s.1 of the Charter include
a consideration of the fundamental values that underlie the
Charter. In Keegstra, supra, Dickson C.J.C. said, at p.29:
... the balancing exercise in s.1 is not restricted to
values expressly set out in the Charter.
[40] Dickson C.J.C. at p.29 cited the following passage from R.
v. Oakes, supra, at p.346:
The court must be guided by the values and principles
essential to a free and democratic society which I believe
embody, to name but a few, respect for the inherent
dignity of the human person, commitment to social justice
and equality, accommodation of a wide variety of beliefs,
respect for cultural and group identity, and faith in
social and political institutions which enhance the
participation of individuals and groups in society. The
underlying values and principles of a free and democratic
society are the genesis of the rights and freedoms
guaranteed by the Charter and the ultimate standard
against which a limit on a right or freedom must be shown,
despite its effect, to be reasonable and demonstrably
justified.
[41] What weight will be given to these values will depend upon
the particular circumstances. As Dickson C.J.C. said in
Keegstra at p.29:
Undoubtedly these values and principles are numerous,
covering the guarantees enumerated in the Charter and
more. Equally, they may well deserve different emphases,
and certainly will assume varying degrees of importance
depending upon the circumstances of a particular case.
[42] One significant value underlying the Charter is the
individual's reasonable expectation of privacy. It is well
described in R. v. Dyment (1988), 45 C.C.C. (3d) 244 (S.C.C.)
per La Forest J., at p.254:
The foregoing approach is altogether fitting for a
constitutional document enshrined at the time when, Westin
tells us, society has come to realize that privacy is at
the heart of liberty in a modern state: see Alan F.
Westin, Privacy and Freedom (1970), pp.349-50. Grounded in
man's physical and moral autonomy, privacy is essential
for the well-being of the individual. For this reason
alone, it is worthy of constitutional protection, but it
also has profound significance for the public order. The
restraints imposed on government to pry into the lives of
the citizen go to the essence of a democratic state.
[43] An important aspect of privacy is an individual's right of
privacy in his or her own home. In the present case, the
police entered Mr. Sharpe's home pursuant to a search warrant
and seized his collection of materials alleged to be
pornographic.
[44] The case law on freedom of expression reflects the
Charter's concern for the right of privacy. R. v. Keegstra,
supra, deals with the constitutionality of the Criminal Code
ban on the wilful promotion of hatred against identifiable
groups (s.319(2)). The prohibition expressly excluded "private
conversations" and this exclusion was an important factor in
the court (by a 4-3 majority) upholding the legislation.
Dickson C.J.C. for the majority said, at p.56:
In assessing the constitutionality of s.319(2), especially
as concerns arguments of overbreadth and vagueness, an
immediate observation is that statements made "in private
conversation" are not included in the criminalized
expression. The provision thus does not prohibit views
expressed with an intention to promote hatred if made
privately, indicating Parliament's concern not to intrude
upon the privacy of the individual.
[45] Canada (Human Rights Commission) v. Taylor, [1990] 3
S.C.R. 892, deals with a provision of the Canadian Human Rights
Act which prohibits repeated communication by telephone of any
matters likely to expose others to hatred or contempt. The
constitutionality of the legislation was upheld by a 4-3
decision. Dickson C.J.C. for the majority dealt with the
privacy point, at pp.936-37:
I do not disagree with the view that telephone
conversations are usually intended to be private; it is
surely reasonable for people to expect that these
communications will not be intercepted by third persons.
Moreover, in determining in Keegstra that the criminal
prohibition of hate propaganda in s.319(2) of the Criminal
Code is not constitutionally overbroad, I relied to an
extent upon the fact that private communications were not
affected. The connection between s.2(b) and privacy is
thus not to be rashly dismissed, and I am open to the view
that justifications for abrogating the freedom of
expression are less easily envisioned where expressive
activity is not intended to be public, in large part
because the harms which might arise from the dissemination
of meaning are usually minimized when communication takes
place in private, but perhaps also because the freedoms of
conscience, thought and belief are particulary engaged in
a private setting. (underlining added)
[46] McLachlin J. for the minority also addressed the question
of privacy. She said, at p.967:
The benefit obtained from prohibiting private
conversations between consenting individuals is arguably
small, since only those who are already receptive to such
messages are likely to be interested in receiving them.
On the other hand, the invasion of privacy may be
significant. Without suggesting that prohibition of
offensive telephone calls could never be justified, the
fact that private communications are banned cannot but
enhance the significance of the infringement of the rights
of the individual effected by s.13(1) of the Act.
[47] R. v. Butler (1992), 70 C.C.C. (3d) 129 (S.C.C.),
addresses the constitutionality of the obscenity provisions of
the Criminal Code. The court by a 7-2 majority upheld the
obscenity provisions. Writing for the majority, Sopinka J.
took account of the fact that the prohibitions did not touch
the private use or viewing of obscene materials. He said, at
p.166:
Fourthly, while the discussion in this appeal has been
limited to the definition portion of s.163, I would note
that the impugned section, with the possible exception of
s-s.(1) which is not in issue here, has been held by this
court not to extend its reach to the private use or
viewing of obscene materials.
[48] I will now specify what I consider to be detrimental
effects arising from the prohibition of simple possession of
child pornography.
[49] First and foremost, the invasion of freedom of expression
and personal privacy is profound. Further, the prohibition
extends to all persons including those who make no harmful use
of pornography. They may be collectors of pornography, whether
out of prurient interest or simply out of curiosity, but with
no harmful intent. The prohibition also includes pedophiles
who, instead of preying on children, use pornography for very
private purposes, such as relief from their affliction by
masturbation. As noted earlier, sexually explicit pornography
is used to relieve pent-up sexual tension of otherwise
potential aggressors. Whether or not this cathartic effect
outweighs the harm caused by the possession of pornography is
not known, but it is nonetheless a significant factor to take
into account. The ban includes "mildly erotic" pornography,
such as is included in s-s.(1)(a)(ii), although the evidence
indicates that "mildly erotic" pornography has the effect of
reducing sexual aggression against children. As for materials
that counsel or advocate sexual offences against children,
there are no doubt collectors who are not affected by such
literature, but who are nonetheless subject to criminal
sanctions arising from mere possession. A magazine or a
newspaper may contain some material said to be pornographic.
Although the balance of the publication may be quite within the
law, the offending material will make possession of the
magazine or newspaper illegal: R. v. Popert (1981), 58 C.C.C.
(2d) 505 (Ont.C.A.). Purchasers of such publications will have
to become their own censors.
[50] I turn then to weigh the salutary effects against the
detrimental effects. In my opinion, the detrimental effects
substantially outweigh the salutary effects; the intrusion into
freedom of expression and the right of privacy is so profound
that it is not outweighed by the limited beneficial effects of
the prohibition.
[51] As pointed out earlier, an individual's personal
belongings are an expression of that person's essential self.
Books, diaries, pictures, clothes and other belongings are
personal and private expressions of their owner's beliefs,
opinions, thoughts and conscience. The simple possession
prohibition deals with a very intimate and private aspect of a
person's life and, in my view, that fact should be given
considerable weight. I find that the limited effectiveness of
the prohibition is insufficient to warrant its highly invasive
effects.
[52] In arriving at this conclusion, I have taken into account
that the Criminal Code contains what I consider to be powerful
measures to tackle the problem of harm to children arising from
pornography. Under s-s.(2) and (3) of s.163.1, the making,
printing, publishing, importing, distribution, selling or
possessing of child pornography for the purpose of publication,
distribution or sale, are made criminal. These measures aim
not only at the sources but also at the means of dissemination
of child pornography. In addition, the obscenity provisions
under s.163 provide an element of protection of children. See
R. v. Butler, supra, p.151.
[53] In conclusion, I find that s-s.(4) fails the "weighing of
effects" proportionality test formulated in Dagenais and is
therefore not saved under s.1 of the Charter. As s-s.(4) is in
violation of s.2(b) of the Charter and is not justified under
s.1, s-s.(4) must be and is declared void.
[54] Mr. Sharpe also raised s.2(a), s.2(d) and s.15 of the
Charter. In light of the conclusion I have reached in respect
of s.2(b) and s.1, I need not address s.2(a), s.2(d) and s.15.
[55] It follows from the declaration that s-s.(4) is void that
Counts 2 and 4, being based upon s-s.(4), must be and are
dismissed.
DEFINITION OF CHILD PORNOGRAPHY: SUBSECTION (1)(b)
[56] All of the charges against Mr. Sharpe involve written
materials or discs of texts of written materials. The Crown
alleges that these materials come within the definition of
child pornography set out in s.163.1(1)(b). I repeat the whole
of s-s.(1) and emphasize the portion of the definition that Mr.
Sharpe attacks.
163.1(1) In this section, "child pornography" means
(a) a photographic, film, video or other visual
representation, whether or not it was made
by electronic or mechanical means,
(i) that shows a person who is or is
depicted as being under the age of
eighteen years and is engaged in or is
depicted as engaged in explicit sexual
activity, or
(ii) the dominant characteristic of which
is the depiction, for a sexual
purpose, of a sexual organ or the anal
region of a person under the age of
eighteen years; or
(b) any written material or visual
representation that advocates or counsels
sexual activity with a person under the age
of eighteen years that would be an offence
under this Act.
[57] Mr. Sharpe contends that s-s.(1)(b) is void as being in
violation of s.2(a), s.2(b), s.2(d) and s.15 of the Charter.
The Crown again concedes that freedom of expression is violated
under s.2(b) of the Charter but contends that the definition in
s-s.(1)(b) is saved by s.1 of the Charter.
[58] I need not deal with s-s.(1)(b) in respect of its
relationship to the simple possession prohibition under s-s.(4)
as I have already ruled that s-s.(4) is void and have dismissed
Counts 2 and 4.
[59] Counts 1 and 3, however, charge Mr. Sharpe with possession
"for the purpose of distribution or sale" and those charges are
based upon s-s.(3) which forbids possession of child
pornography for the purpose of distribution or sale. It is
therefore in the context of s-s.(3) that I must determine the
constitutionality of the definition in s-s.(1)(b).
[60] Because of the Crown's concession that s-s.(1)(b) violates
the freedom of expression provision of the Charter, the issue
again becomes whether the impugned provision is justified under
s.1.
[61] I agree with the Crown's contention that s-s.(1)(b), at
least in the context of s-s.(3), is justified under s.1 of the
Charter. I have reviewed all the tests in Oakes, supra, and
the further test in Dagenais, supra, and am of the view that
the Crown must succeed on all of them. I do not believe I need
go into the same detail as I did earlier in respect of s-s.(4).
However, some considerations that I find significant are set
out below.
[62] The dissemination of materials that counsel or advocate
sexual abuse of children must pose some risk to children.
Possession for the purpose of sale or distribution of such
material can hardly be justified on any level of reasoning.
[63] Possession for the purpose of sale or distribution is far
less invasive of an individual's freedom of expression and
right of privacy than a total ban on possession.
[64] The type of material covered by s-s.(1)(b) is strictly
limited to that which advocates or counsels sexual crimes
against children. Mr. Sharpe is concerned that the ban might
interfere with advocacy by pedophiles to persuade Parliament to
change the age of consent laws and other matters of concern to
pedophiles. I do not read s-s.(1)(b) as outlawing that kind of
advocacy.
[65] There are numerous protections available to ensure minimum
infringement of freedom of expression. In Langer, supra,
McCombs J. said, at p.323:
Section 163.1 includes a number of defences designed to
ensure minimal infringement of freedom of expression.
Section 163.1(6) provides for a defence based either on
artistic merit, or an educational, scientific, or medical
purpose. Section 163.1(5) provides for a defence based on
an honest belief, arrived at through due diligence, that
the material does not depict anyone apparently under the
age of 18 years. Moreover, the legislation imports from
the obscenity provisions, a defence based on the public
good (s.163.1(7), and s.163(3) and (4)).
[66] Additional protection arises from the principle of
reasonable doubt which is applicable to all elements of a
criminal offence including, in the present case, the issue of
whether any given materials fall within the s-s.(1)(b)
definition.
[67] Mr. Sharpe relies on Iorfida v. MacIntyre (1994), 93
C.C.C. (3d) 395 (Ont.Ct.Gen.Div.) which deals with a provision
of the Criminal Code prohibiting the distribution of
"instruments or literature for illicit drug use." The
prohibited literature was defined in part as that which
promotes, encourages or advocates the production, preparation
or consumption of illicit drugs. The court held that the words
"or literature" must be severed from the offence provision as
being in violation of s.2(b) of the Charter and not justified
under s.1.
[68] In my opinion Iorfida is distinguishable from the present
case. In Iorfida the court said, at p.411:
The enactment of s.462.2 expanded the prohibition and
publication to include all literature which promotes or
glamorizes illicit drug use. This takes the prohibition
much beyond what was already covered in a counselling
offence. It must also be remembered that the express
objective of s.462.2 is to prohibit expression. Its
objective is not to prevent imminent criminal conduct.
The purpose of the statute is to prevent the free flow of
information touching on the wisdom of Parliament's own
laws.
[69] As noted earlier, I do not consider that the prohibition
in the present case prevents "the free flow of information
touching upon the wisdom of Parliament's own laws."
[70] For the foregoing reasons, I find that despite violating
the freedom of expression under s.2(b) of the Charter, the
definition in s-s.(1)(b) in the context of s-s.(3) is justified
under s.1 of the Charter.
[71] I will now consider Mr. Sharpe's contentions of violations
of s.2(a), s.2(d) and s.15 of the Charter. In this regard, the
Crown contends that these provisions have not been violated. I
agree.
[72] With respect to s.2(a), the guarantee of freedom of
conscience does not extend to the point where manifestations of
conscience injure others: R. v. Big M. Drug Mart Ltd. (1985),
18 C.C.C. (3d) 385 at 425 (S.C.C.).
[73] In R. v. M.S. (1996), 111 C.C.C. (3d) 467 (B.C.C.A.),
leave to appeal to S.C.C. dismissed, 112 C.C.C. (3d) vii, it
was argued that the incest provisions of the Criminal Code
violate s.2(a) of the Charter. The court rejected this
argument, holding that s.2(a) of the Charter had no
application. Donald J.A. for the court said, at pp.483-84:
I think this argument is utterly specious. The criminal
law fundamentally deals with right and wrong. The Criminal
Code gives expression to our society's moral principles.
Section 155 seeks to prevent the harm to individuals and
to the community caused by incest. The fact that the
offence is rooted in a moral principle developed within a
religious tradition cannot support a claim for
interference with the freedom to believe or not to believe
under the Charter.
The appellant's reliance on the Big M Drug Mart, supra,
case is inappropriate. Sunday observance imposed on all
persons, regardless of their beliefs, is plainly different
from a law against harming others. For the good and order
of our community, obedience to laws such as s.155 cannot
be a matter of choice governed only by private conscience.
[74] There is no doubt that s-s.(1)(b), in conjunction with s-
s.(3), seeks to prevent harm to children. It aims at persons
who contribute to that harm by distributing materials which
advocate or counsel sexual offences against children. To
paraphrase Donald J.A. in R. v. M.S., for the good and order of
our community, obedience to such a law cannot be a matter of
choice governed only by private conscience.
[75] It follows that Mr. Sharpe's submission based upon s.2(a)
of the Charter must be rejected.
[76] Freedom of association under s.2(d) of the Charter is the
right to join with others in lawful common pursuits and to
establish and maintain organizations and associations. This
freedom does not confer on a group the right to do that which
would be unlawful if done by an individual. In Reference Re
Public Service Employee Relations Act (1987), 38 D.L.R. (4th)
161 (S.C.C.), McIntyre J. said, at p.229:
It follows from this discussion that I interpret freedom
of association in s.2(d) of the Charter to mean that
Charter protection will attach to the exercise in
association of such rights as have Charter protection when
exercised by the individual. Furthermore, freedom of
association means the freedom to associate for the
purposes of activities which are lawful when performed
alone. But, since the fact of association will not by
itself confer additional rights on individuals, the
association does not acquire a constitutionally guaranteed
freedom to do what is unlawful for the individual.
[77] In R. v. M.S., supra, Donald J.A. considered an argument
that s.2(d) protects the right of an adult to associate with a
young person for the purposes of sexual activity. He said, at
p.474:
The appellant's argument that his freedom to associate in
a sexual relationship with his daughter is infringed by
s.155 of the Code, proceeds on the footing that the
Charter must be given a broad interpretation.
On that basis any crime which prohibits an activity
necessarily involving the interaction of two persons in
the pursuit of a common objective engages s.2(d) and must
be justified under s.1.
This poses the question whether "association" has any
limits. In my opinion there are limits. They arise from
the purpose behind s.2(d) which is essentially to protect
an individual's right to participate in collective
activity. The notion of freedom of association addresses
social, not sexual, intercourse. Historically, the causes
advanced by associations must often forbidden or oppressed
by tyrannical authority were not concerned with intimate
relationships but with broader issues affecting the
community.
[78] Donald J.A. relied on R. v. Skinner (1990), 56 C.C.C. (3d)
1 (S.C.C.) which holds that communication between a prostitute
and a customer for the purpose of obtaining sexual services is
not protected by s.2(d).
[79] I find that s.2(d) of the Charter has no application to
the present case.
[80] The final provision of the Charter which Mr. Sharpe claims
is applicable is s.15, the guarantee of equality without
discrimination. In R. v. M.S., supra, the court dealt with a
submission that the incest provisions of the Criminal Code
discriminated against fathers who wished to have sex with their
daughters. The point was rejected. Donald J.A. said, at
pp.482-83:
I will assume for brevity, but without deciding the point,
that the appellant meets the first part of the test,
namely, that s.155 creates a distinction between him and
those who would choose a sexual partner other than their
daughter and in that sense he is not equal under the law.
I think the argument that the distinction is
discriminatory must fail.
In the first place, the appellant cannot bring himself
within a "discrete and insular minority" (a phrase used in
Andrews v. Law Society of British Columbia, [1989] 1
S.C.R. 143 (S.C.C.), and repeated in Turpin, supra) which
has suffered historical prejudice in Canadian society.
Wilson J. alluded in Turpin at 1333 to indicia of
discrimination: "stereotyping, historical disadvantage or
vulnerability to political and social prejudice". The
appellant attempts to define himself according to a sexual
preference but any analogy to the position of homosexuals
in our society is strained beyond credulity. The
appellant's inclination or desire to mate with his
daughter is not a group or individual characteristic that
bears any resemblance to the anti-discriminatory purposes
of s.15.
Parliament's prohibition of incest is society's expression
of sexual mores. This is the role of Parliament and the
courts must respect that role in the administration of
s.15(1). As Wilson J. observed in R. v. Hess; R. v.
Nguyen, [1990] 2 S.C.R. 906 at 930-31, 59 C.C.C. (3d) 161
(S.C.C.) in the context of a claim that the Code
discriminated against men who would have sexual
intercourse with girls under 14 because women are not
prohibited from having sexual intercourse with boys under
14:
In my view, it is not this Court's role under s.15(1)
of the Charter to decide whether a female who chooses
to have intercourse with a boy under fourteen merits
the same societal disapprobation as a male who has
intercourse with a girl under fourteen. These issues
go to the heart of a society's code of sexual
morality and are, in my view, properly left for
resolution to Parliament.
The appellants also submit that s.146(1) of the Code
discriminates against males because males under the age of
fourteen are denied the same protection as s.146(1)
affords to females under the age of fourteen. Only a young
female can obtain the conviction of her seducer under this
provision. Once again, however, I think it important to
bear in mind that the legislature has chosen to punish a
male who engages in a form of penetration to which only a
male and a female can be parties. The legislature has
concluded that sodomy or buggery are forms of penetration
that should be dealt with separately: see, for example,
s.155 of the Code. Once again we are faced with
distinctions aimed at biologically different acts that go
to the heart of society's morality and involve
considerations of policy. They are, in my view, best left
to the legislature. [Emphasis added.]
In deciding whether a distinction is discrimination under
s.15(1) we must examine the questioned law in the larger
social, political and legal context because "[i]f the
larger context is not examined, the s.15 analysis may
become a mechanical and sterile categorization process
conducted entirely within the four corners of the impugned
legislation": Turpin at 1332. Viewed in that context, the
evidence in this case demonstrates that the law makes a
relevant, rational distinction concerning sexual choice,
between those who would have sex with their daughter and
those who would not. The personal attribute which the
appellant says leads to discrimination goes to the very
reason for the law: it is the proclivity to engage in
behaviour that exploits the child, harms the well-being of
the family and hence the community, and genetically
endangers the offspring of the relationship.
[81] I adopt the foregoing reasoning in R. v. M.S. and find
that s.15 has no application to the present case.
[82] In summary, I reject Mr. Sharpe's attack on the
constitutionality of the definition of child pornography set
out in s-s.(1)(b) in the context of s-s.(3) of s.163.1.
[83] CONCLUSIONS
1. Subsection (4) of s.163.1 of the Criminal Code is
declared void as being in violation of s.2(b) of the Charter
and not justified under s.1.
2. Counts 2 and 4 of the indictment are dismissed.
3. Mr. Sharpe's constitutional attack upon s-s.(1)(b) in
the context of s-s.(3) of s.163.1 of the Criminal Code is
dismissed.
"D.W. Shaw, J."
Mr. Justice Shaw